Poor vetting of letters will make it harder for PM in New York. Photo / Mark Mitchell
COMMENT:
The issue of prisoner rights is never going to be a winning issue in politics.
Prime Minister Jacinda Ardern, Justice Minister Andrew Little, and Corrections Minister Kelvin Davis have been reminded of that this week as they grapple with voting rights and letter-writing rights, and what limits should apply.
Prisoner voting is a particularly difficult issue for Labour, which has to balance its reforming instincts with the electoral reality that, even in the unlikely event they muster the votes in Parliament, it will lose them votes at an election.
The ban is well set out in statute. The courts and Parliament disagree on the voting ban but in New Zealand, unlike the United States or Canada, Parliament rules.
Letter-writing rights of prisoners and lawful vetting of correspondence are well set out in statute and has not yet faced any challenge under the New Zealand Bill of Rights Act 1990.
That may only be a matter of time, as the correspondence of 100 inmates deemed extremist is now being more heavily vetted from this week.
The immediate response of the Government when a letter with veiled calls to action by the alleged Christchurch mosque mass murderer was posted on the internet was to blame a law.
The defectiveness of the law was quickly debunked by no less an expert than ex-prisoner Arthur Taylor, who clearly knows the law in theory and practice better than the minister after spending nearly 40 years inside.
The poor vetting of the letters was the problem and is such a basic and embarrassing error by prison management that Ardern was entitled to be furious about it.
It will make it that little bit harder for Ardern when she is in New York next month, back on the case of policing the internet for extremism and incitement of extremism.
If New Zealand can't even take care of the basics, then its moral authority is undermined.
It looks as though Kelvin Davis will be facing as much scrutiny as Corrections Minister in the coming weeks as his National predecessor Sam Lotu-Iiga did.
The prison letter somewhat overshadowed the prisoner voting issue that began the week in the wake of the Waitangi Tribunal finding the voting ban breached the Treaty of Waitangi.
Little was emboldened by the finding, dismissing the era in which it was passed as the time when Act had been let off the leash when it came to "the more fascist policies on criminals" and National followed suit.
The tribunal's finding along with the 2018 Supreme Court declaration of the voting ban being "inconsistent with the Bill of Rights Act" meant Parliament would be forced to look at it again, he said.
The Bill of Rights advocates were heartened. They were stirred into campaign mode again, challenging the Labour-led Government to put right an apparent wrong and to take a principled stand after the tribunal report.
From their perspective, a repeal of the law would not only let prisoners vote, it would add some muscle to the Bill of Rights Act.
Ardern somewhat dampened any Andrew Little-heightened expectations at her post cabinet press conference.
Fresh from the reality of the cabinet room where nothing gets through without New Zealand First's approval, she made it evident that if anything were to be lifted, it would not be the current blanket ban on prisoner voting.
If anything, it was more likely to be a reversion to the pre-2010 position when the ban applied to prisoners serving more than three years.
But even that is fanciful. New Zealand First voting to lift a ban on prisoners voting would be like the Green Party voting for genetic modification.
There may be any amount of logic behind it but it goes against their DNA.
New Zealand First leader Winton Peters has hinted the party might land on a compromise to keep the ban in place but to ensure that discharged prisoners are re-enrolled on the electoral roll.
The Green Party will unsuccessfully attempt to lift the voting ban altogether to amend an electoral bill going through Parliament, which allows enrolments on election day.
And the Labour Party again finds itself in a halfway house pleasing no one between the "hard on crime" coalition partner New Zealand First and the "soft on crime" confidence and supply partner in the Greens.
National is unequivocal in its position to maintain the ban on prisoner voting, passed when it was in Government, and is also unequivocal on whose job it is to determine prisoner rights.
The message in Simon Bridges' comments were clear - that the voting ban would remain under any government he led and that it was a values issue, not a legal issue.
The reference to it being a legal issue means it is up to Parliament and not the courts to determine the rights of prisoners.
Taylor, who is now out of prison, was behind the legal challenge to the ban on prisoner voting.
It has been a hugely important case, not just because of prisoner voting rights, but because of the constitutional fight it represented between the Crown and the courts and whether the courts actually had the power to do what the inmates were asking – to declare the law to be inconsistent with the Bill of Rights Act.
The Crown insisted that if Parliament had wanted the courts to do that, it would have been spelled out in law, as it had been in enabling legislation with the Human Rights Review Tribunal.
The High Court and Court of Appeal claimed that making such declarations was part of their inherent power and that if the Human Rights Review Tribunal could do so, they certainly could as well.
But before the Supreme Court hearing began, Little and Attorney General David Parker conceded half the battle and said they would empower the senior courts in statute to make declarations of inconsistency, with an onus on Parliament to review but not change the law.
Parker and Little's rationale privately was that it was better that such powers were given by Parliament than asserted by the courts.
Taylor was beamed into the Supreme Court hearing via video last year when Solicitor General Una Jagose had the ignominy of fighting a battle, half of which had already been conceded by her masters in Government.
He won the case in the courts, but he almost certainly won't win the case in Parliament.
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